Imagine this scenario: A famous celebrity visits your store. The visit is completely unsolicited. In fact, the visit is simply for the celebrity to shop. And she does–shop that is. In fact, she makes enough purchases that she carries bags bearing the logo of your store onto the street and is photographed by paparazzi carrying those bags. Then that photo gets posted to a celebrity news site. The star is big. She shopped at your store. You want to associate your store–your brand–with this celebrity. So, you might wonder, can you take the photo and post it to your store’s social media accounts like Twitter and Facebook? You, me and the rest of the world are about to find out.
This scenario is exactly what is at issue in a case filed in the United States District Court for the Southern District of New York, Katherine Heigl v. Duane Reade, Inc., No. 14 CV 2502. Ms. Heigl, a TV and Movie actress who has won a primetime Emmy Award for her work on the television show Grey’s Anatomy, was photographed by a paparazzo leaving a New York Duane Reade store carrying bags of purchases. The photo was posted to the celebrity news site Just Jared, accompanying an article about Ms. Heigl’s career. From there it appears that Duane Reade copied the photo and added the photo to its Twitter and Facebook feeds. Additionally, Duane Reade added the following text to the Tweet: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore”. Ms. Heigl contends that the Tweet constituted false advertising because it implied that she endorses Duane Reade. Thus, after her requests to cease and desist were allegedly ignored by Duane Reade, the lawsuit was filed. An image of the Tweet in question, which was taken down immediately after the lawsuit was filed, can be found attached to the complaint.
This case presents interesting questions at the intersection of social media, first amendment/free speech, and false advertising law. And, already, there is a debate raging over whether or not Ms. Heigl has a shot of winning her case. Having been involved in false advertising cases–including a case where a competitor implied in online postings that its product was my client’s product–I know that false advertising claims are serious business, subject, potentially, to treble damages. Moreover, a celebrity’s image is a carefully guarded asset that often carries substantial worth. On the other hand, even celebrities have no automatic right to privacy protection when they step out into the public sphere.
To me, the issue here is twofold. First, whether Duane Reade’s use of a photo copied from a celebrity news site and stripping it of its news context was proper. Second, did the text of the Tweet and Facebook posts, as composed by Duane Reade, cross the line into implying a celebrity “endorsement” or did it rather simply explain what the photo already showed? If the later, I think Duane Reade might have a good defense to Ms. Heigl’s claims as such expressive content is protected under the law. Specifically, in my opinion, the case is likely to turn on whether the phrase “can’t resist shopping” is merely explicative or implies an endorsement. Either way, this case bears watching by anyone interested in just how far corporations can go when using publicly-obtained images of celebrities on social media platforms.